Commonwealth Numbered Acts Commonwealth Numbered Acts1 Subsection 79A(5)
Omit "section 18A of the Crimes Act 1914 ", substitute " section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act)".
2 Subsection 79A(10)
Repeal the subsection.
3 Section 83
Omit "or 86D", substitute ", 86D or 86E".
4 Before subsection 86E(4)
Insert:
(3B) For the purposes of this Act (other than this section or section 86F), an order under this section is not a penalty.
5 After section 86E
Insert:
86F Privilege against exposure to penalty--disqualification from managing corporations
Court proceeding
(1) In a civil or criminal proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty by way of an order under section 86E.
(2) Subsection (1) applies whether or not the person is a defendant in the proceeding or in any other proceeding.
Statutory requirement
(3) A person is not entitled to refuse or fail to comply with a requirement under this Act:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty by way of an order under section 86E.
Definition
(4) In this section:
"penalty" includes forfeiture.
6 Subsection 87(1)
Omit "or 86D", substitute ", 86D or 86E".
7 Section 154A
Insert:
"contravention" , in relation to a law, includes an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against that law.
8 Section 154A
Insert:
"data" includes:
(a) information in any form; or
(b) any program (or part of a program).
9 Section 154A
Insert:
"data held in a computer" includes:
(a) data held in any removable data storage device for the time being held in a computer; or
(b) data held in a data storage device on a computer network of which the computer forms a part.
10 Section 154A
Insert:
"data storage device" means a thing containing, or designed to contain, data for use by a computer.
11 Section 154A (definition of evidential material )
Repeal the definition, substitute:
"evidential material" means a document or other thing that may afford evidence relating to:
(a) a contravention of this Act; or
(b) a contravention of Part 20 of the Telecommunications Act 1997 ; or
(c) a contravention of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 ; or
(d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.
12 Section 154A (definition of executing officer )
Repeal the definition, substitute:
"executing officer" , for a search warrant, means:
(a) the inspector named in the warrant as being responsible for executing the warrant; or
(b) if that inspector does not intend to be present at the execution of the warrant--another inspector whose name has been written in the warrant by the inspector so named; or
(c) another inspector whose name has been written in the warrant by the inspector last named in the warrant.
13 Subsection 154F(1)
Repeal the subsection, substitute:
(1) If:
(a) an inspector or an assistant enters premises under this Division; and
(b) he or she believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material;
he or she may do only 1 of 2 things.
14 Subsection 154F(2)
Omit "evidential material", substitute "data".
15 At the end of subsection 154F(2)
Add "from the premises".
16 Subsection 154F(3)
Omit "evidential material", substitute "data".
17 After subsection 154G(1)
Insert:
(1A) In executing a search warrant that is in force in relation to premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) with the written consent of the occupier of the premises;
take photographs, or make video recordings, of the premises or of anything at the premises.
(1B) If a search warrant in relation to premises is being executed, the executing officer and the officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
18 Paragraph 154G(2)(a)
Repeal the paragraph, substitute:
(a) the executing officer or an officer assisting, in the course of searching for the kind of evidential material specified in the warrant, finds another thing that he or she believes on reasonable grounds to be evidence of:
(i) an indictable offence against this Act; or
(ii) an indictable offence against Part 20 of the Telecommunications Act 1997 ; or
(iii) an indictable offence against Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 ; or
(iv) an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part; and
19 After section 154G
Insert:
154GA Removing things for examination or processing
(1) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a search warrant if:
(a) both of the following subparagraphs apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
Notice to occupier
(2) If a thing is moved to another place for the purpose of examination or processing under subsection (1), the executing officer must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
Period of removal
(3) The thing may be moved to another place for examination or processing for no longer than 72 hours.
Extensions
(4) An executing officer may apply to a magistrate for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.
(5) The executing officer must give notice of the application to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(6) The magistrate may order an extension for a period specified in the order if the magistrate is satisfied that the extension is necessary.
20 Subsection 154H(1)
Repeal the subsection, substitute:
(1) If:
(a) a search warrant is in force in relation to premises; and
(b) the executing officer or an officer assisting believes on reasonable grounds that any data accessed by operating electronic equipment at the premises (including data not held at the premises) might constitute evidential material of the kind specified in the warrant;
he or she may do only 1 of 3 things.
21 Subsection 154H(3)
Omit "evidential material", substitute "data".
22 At the end of subsection 154H(3)
Add "from the premises".
23 At the end of subsection 154H(3)
Add:
Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance--see section 154RA.
24 Subsection 154H(4)
Omit "evidential material", substitute "data".
25 At the end of subsection 154H(4)
Add:
Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance--see section 154RA.
26 Paragraph 154H(5)(a)
Omit "evidential material" (wherever occurring), substitute "data".
27 Section 154K
After "authorise", insert "a member of the Australian Federal Police,".
28 After paragraph 154L(b)
Insert:
(ba) a member of the Australian Federal Police who is an officer assisting may use such force against persons and things as is necessary and reasonable in the circumstances; and
29 Subsection 154R(2) (penalty)
Repeal the penalty, substitute:
Penalty: 30 penalty units or imprisonment for 12 months, or both.
30 Subsection 154R(4)
Omit "or in any proceedings that would expose the person to a penalty,".
31 Paragraph 154R(4)(b)
Omit "or 137.2", substitute ", 137.2 or 149.1".
32 At the end of Subdivision D of Division 4 of Part XID
Add:
154RA Person with computer knowledge to assist access etc.
(1) The executing officer for a search warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:
(a) access data held in, or accessible from, a computer that is on premises to which the warrant relates;
(b) transfer the data to a disk, tape or other storage device;
(c) convert the data into documentary form.
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and
(b) the specified person is:
(i) reasonably suspected of having committed the contravention, or one or more of the contraventions, stated in the search warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the computer forms a part; or
(ii) measures applied to protect data held in, or accessible from, the computer.
(3) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person engages in conduct; and
(c) the person's conduct breaches the order.
Penalty for a contravention of this subsection: Imprisonment for 6 months.
33 Subsection 154T(1)
After "warrant", insert "or moved under subsection 154GA(1)".
Note: The heading to section 154T is altered by inserting " or moved " after " seized ".
34 Subsection 154T(2)
After "seized", insert "or moved".
35 Subsections 154U(1) and (2)
Omit "60 days" (wherever occurring), substitute "120 days".
36 Paragraph 154V(1)(a)
Omit "60 days", substitute "120 days".
37 Subsection 154V(2)
Omit "a contravention of".
38 Paragraph 154V(2)(a)
Before "this", insert "a contravention of".
39 Paragraphs 154V(2)(b) and (c)
Before "Part", insert "a contravention of".
40 At the end of paragraph 154V(2)(c)
Add "or".
41 After paragraph 154V(2)(c)
Insert:
(d) a contravention of section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part;
42 At the end of subsection 154X(2)
Add:
Note: A magistrate who holds office under a law of a State or Territory may issue a warrant in relation to premises even if those premises are not in that State or Territory.
43 Subsection 155(7)
After "incriminate the person", insert "or expose the person to a penalty".
44 Subsection 155(7)
Omit "by a person" (wherever occurring), substitute "by an individual".
45 Subsection 155(7)
Omit ", or any document produced in pursuance of such a notice,".
46 Subsection 155(7)
Omit "against the person", substitute "against the individual in any criminal proceedings, other than".
47 Paragraphs 155(7)(a) and (b)
Repeal the paragraphs, substitute:
(a) proceedings for an offence against this section; or
(b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this section.
48 Subsection 159(1)
Omit "him or her", substitute "the person or expose the person to a penalty".
49 Subsection 159(2)
Repeal the subsection, substitute:
(2) Evidence given by an individual before the Commission is not admissible against the individual in any criminal proceedings, other than:
(a) proceedings for an offence against this Part; or
(b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.
50 Paragraph 165(1)(a)
After "95(1)", insert "or section 95AH".
51 After subsection 165(3)
Insert:
(3A) Subject to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):
(a) inspect any document contained in the register kept under section 95AZ; and
(b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy by the Registrar or a Deputy Registrar).
52 Application--search warrants
The amendments of the following provisions made by this Schedule:
(a) section 154A of the Trade Practices Act 1974 (to the extent to which that section relates to Division 4 of Part XID of that Act);
(b) Division 4 of Part XID of the Trade Practices Act 1974 ;
apply in relation to search warrants issued after the commencement of this item.
53 Application--giving answers and producing documents etc.
(1) The amendments of subsection 155(7) of the Trade Practices Act 1974 made by this Schedule apply in relation to notices under section 155 of that Act served after the commencement of this item.
(2) The amendments of section 159 of the Trade Practices Act 1974 made by this Schedule apply in relation to:
(a) requirements to give evidence; and
(b) requirements to produce documents;
imposed after the commencement of this item.
[ Minister's second reading speech made in--
House of Representatives on 3 December 2008
Senate on 12 February 2009 ]
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